Left of Launch: Communications and Threat Escalation in a Nuclear Age

Moderator: Major Ryan Fisher 

Current nuclear policy and the doctrine of deterrence was developed in the crucible of conventional warfare. Session 1 will examine whether there is a tension among the concepts of preemption, anticipatory self-defense, and nuclear deterrence as the default doctrine in an age where the legality of nuclear weapons is increasingly uncertain. The discussion will begin with a review of U.S. nuclear policy and capabilities. It will include an examination of the U.S.’s stated goal of nuclear deterrence and whether this conflicts with a nuclear arsenal that appears structured for first-strike capabilities. The discussion will also explore whether current U.S. policy needs revision for philosophical or efficacy-based reasons and whether other policy options might better satisfy U.S. strategic ends. Does the use of nuclear weapons follow the same legal analysis as its contemporary counterparts? Does the analysis fall short when it comes to nuclear weapons? Should the analysis or the underlying rules change? The answers to these questions will involve discussions of applicable international humanitarian law, the 1996 opinion by the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, and the recently-enacted U.N. Treaty on the Prohibition of Nuclear Weapons.

Moderator: Prof. Charles Moxley 

The law of armed conflict recognizes that sovereign states possess the inherent right to use force to defend themselves against certain acts perpetrated by others. The “acts” which may trigger invocation of the right of self-defense may include threats to use force. This right of self-defense also extends, in some cases, to the right to anticipate an attack and act in advance of the attack – though how much in advance remains an issue of contention. Session 2 will focus on the legal predicate of the authority of states to issue threats and, when threatened, to respond in self-defense from both a domestic and an international law perspective. Domestically, does a president have the authority to threaten other sovereigns unilaterally? Is it permissible for a president to threaten to take actions that are not legally permissible for the president to unilaterally direct? Do such threats constitute acts of war? If so, must the president comply with the War Powers Resolution after making the threats? Under international law, does threat-making comply with Article 2(4) of the United Nations Charter? Is it possible for nations, acting pursuant to Article 51 of the U.N. Charter, to create the conditions for their defense, thereby opening the door to anticipatory military strikes? These are just a few of the questions that this session will tackle in the hopes of achieving greater clarity in this enigmatic but pressing area of international law.

Moderator: Prof. Michael Horowitz

The size of nuclear arsenals, the positioning of nuclear weapons, and the intricate wording of policy pronouncements have as much to do with internal military readiness as they do with a state sending deliberate signals to their adversaries. This “signaling” aspect of nuclear weapons and policy is, at its core, a form of communication. The Cuban Missile Crisis serves as the benchmark for these high-stakes, political conversations. Such conversations, of course, are not unbounded. Although it has failed to establish an outright ban on nuclear weapons, international law has been instrumental in shaping the nuclear conversation. The panel members in this session will discuss how nuclear possessor states signal to one another, both in times of relative peace and during periods of crisis. The participants will also address whether this form of communication is effective at promoting the peaceful resolution of disputes, or whether it increases the chances of a deliberate or an inadvertent nuclear crisis. Implicit in this conversation is an exploration of the factors that frustrate the delivery and receipt of an intended message. For example, signals can be inconsistent with other strategic messaging, blocked or occluded by cyber operations, and unintentionally create time pressures that further complicate complex crisis management. The panel will discuss the risks inherent to nuclear signaling, the potential ramifications of allowing states to carry out their strategic communications in an unregulated environment, and the limits that international law should impose in this arena.

Moderator: Mr. Jules Zacher 

Technological advances have increased the lethality and efficiency of current weapons systems. Compounding the danger is the fact that advances in technology continue to reduce traditional barriers to entry, thus increasing the likelihood that rogue actors can obtain the means to inflict a high degree of destruction. The speed at which new weapons are being developed severely impacts the ability to create adequate defenses. Moreover, nations are compelled to take increasingly offensive postures as they address their expanding national security concerns. While these developments generally involve conventional weapons, they apply with equal force to nuclear weapons. What role will international law play in managing the complexity of future nuclear communications? Are there other ways for the international community to compel recalcitrant nuclear states to comply with emerging norms? Can law compete with the speed of change, and the intransigence of key actors? What does the withdrawal of leading nations from existing nuclear treaties say about the ability of law to anticipate and manage present and future nuclear communications?

Some of those nuclear communications involve threats. Does current international law, particularly the language of Article 2(4) of the U.N. Charter, prevent the threat of nuclear force to be used as a policy tool? What role might international humanitarian law play in constraining threats to use force when it can be ignored without consequence? Assuming such constraints are enforceable, should the international community even want to circumscribe behavior that might prove beneficial for preventing or mitigating threats to international peace and security? Do nuclear-based threats promote peace and security or do they undermine the global order? What role should non-nuclear actors play in shaping future nuclear conversations? Can the signatories to the Treaty on the Prohibition of Nuclear Weapons drive the conversation internationally towards a nuclear-free world? Session 4 will examine these issues, with an emphasis on threats in the emerging “new” nuclear age. In particular, the panel members will address the emerging role of social media as a mouthpiece for leaders to issue threats. The panel will discuss the power of social media as a platform for threats in light of the sole authority of many leaders of nuclear possessor states to authorize nuclear strikes. Due attention will also be paid to the vulnerabilities of social media accounts to hacking and the resultant potential for inadvertent escalation of threats to lead to the use of nuclear weapons.

Moderator: Major Justin Ulrich 

Within the United States, the tension between the executive and the legislative branches over the exercise of war powers has evolved throughout U.S. history. The executive branch now plays the dominant role in our system. This panel will examine the practicality of having a Commander-in-Chief who is unfettered by domestic hard law in the ability to issue threats to use force. The panel will discuss the origin and history of the War Powers Resolution and its attempt to reset the balance of war powers between the two political branches. The panel will also examine other constraints that operate within the U.S. political system and discuss whether new political processes are warranted or even wanted. The discussion will also cover the impact that technological advances in the means and methods of warfare will have on the need to constrain unilateral executive action.